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Kanerva v. Zyburt

United States District Court, W.D. Michigan, Northern Division

December 20, 2019

JOHN R. KANERVA, Petitioner,
v.
GREG ZYBURT, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner, purportedly under 28 U.S.C. § 2254. However, because Petitioner challenges his pretrial detention, his petition is properly considered one under 28 U.S.C. § 2241. See Atkins v. Michigan, 644 F.2d 543, 546 n.1 (6th Cir. 1981) (holding that, where a pretrial detainee challenges the constitutionality of his or her pretrial-or prejudgment-detention, he or she must pursue relief under 28 U.S.C. § 2241). Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases[1]; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice for failure to exhaust available state-court remedies.

         Discussion

         I. Factual allegations

         Petitioner John R. Kanerva presently is jailed at the Marquette County Jail, awaiting a competency determination before he is tried on the charge of unlawfully driving away an automobile, Mich. Comp. Laws § 750.413. On November 20, 2019, Petitioner filed his habeas corpus petition. The petition raises four grounds for relief, as follows:

I. Right to Remain silent regarding Forced Com[petency] Exam #2. I don't have to be compelled to be a witness against myself.
II. Bill of Rights Amendments to U.S. Constitution due process violated[.] I claimed my time. Time limited the Petitioner's right to proceed. 5 amendment due process violated.
III. 1st Amendment Right to petition the Government denied by Judge in the 25th Circuit Court. See Order. Atty. not Effective. Ineffective Att.
IV. Double Je[o]pardy Clause of the Constitution for the United States of America. I've claimed my right, Denied.

(Pet., ECF No.1, PageID.6-7, 9-10.)

         Petitioner's habeas petition is difficult to understand, though some supplemental information is available in the attachments to Petitioner's earlier attempt to remove his case to this Court. See People v. Kanerva, No. 2:15-cv-130 (W.D. Mich.).[2] From these materials, it appears that Petitioner was arrested on August 28, 2015, for taking a vehicle that did not belong to him, based on a police complaint filed by Petitioner's cousin's husband, who contended that the car belonged to Petitioner's cousin. Petitioner alleges that the complainant lied. Petitioner contends that he bought the car from his brother on March 2, 2013, and that his brother gave him the title, which Petitioner later misplaced. From the documents attached to No. 2:15-cv-130, the complaint appears to be part of a protracted series of disputes between Petitioner and his cousin (and her husband) about the legality of their purchase of real property from the county after Petitioner failed to pay his taxes.

         On September 2, 2015, Petitioner was placed on an interim bond, and he was ordered to appear on September 8, 2015. (2:15-cv-130, PageID.56.) A preliminary examination was held on September 10, 2015.

         Petitioner states that, on February 28, 2016, he calculated that the 180-day period for trial established by Mich. Ct. R. 6.004 had expired. Although represented by counsel, Petitioner appears to have filed a motion to dismiss the case under the 180-day rule. The court apparently held that there had been no violation of the 180-day rule. Sometime after this day, the court issued a bench warrant to hold Petitioner for a competency examination. Petitioner refused to participate in the competency examination, contending that it amounted to a religious test, because he knew from past experience that examiners asked if he “believe[d] in Spirits and Ghosts.” (Br. in Supp. of Pet., ECF No. 1-1, PageID.18-19.) Petitioner alleges that, based on his objections to the competency examination, the order for such examination was dismissed, and Petitioner subsequently was released from jail.

         On October 28, 2019, the trial court again ordered a competency examination and directed that Petitioner's bond be revoked and that he remain in custody pending completion of the competency examination. (Marquette Cir. Ct. Order, ECF No. 1-1, ...


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